Delhi District Court
Judgment vs . on 9 February, 2009
1
In the court of ASHWANI SARPAL, Additional District Judge,
(West District) Tis Hazari Court, Delhi.
Sh. Shyam Bihari Lal
vs.
State & Others
(PC No.: 342/06/97)
Date of filing of petition=13-8-1997
Date of decision=9-2-2009
(Petition u/s 376 of Indian Succession Act for grant of
Probate/Letters of Administration)
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JUDGMENT:-
The present petition for grant of Probate/Letters of Administration on basis of Will dated 5-9-1991 executed by Sh. Brij Bihari Lal Gupta in respect his immovable and movable properties as mentioned in Annexure-B of the petition was filed by his son Sh. Shyam Bihari Lal. Testator Sh. Brij Bihari Lal expired on 27-8-1996. The notice of this petition was given to all the respondents and the state. General public was also informed through citation published in the newspaper 'National Herald' dated 22-7-1998. Respondent no. 2 is mother and respondents no. 3 to 8 are the brothers and sisters of the petitioner. Case was only contested by respondent no. 5 Smt. Kusum Lata, daughter of the deceased whereas others either became exparte or filed 'no- objections'. Respondent no. 5 in her objections described the Will in question as invalid, forged and fabricated document. She further stated that the immovable properties in question were not the self acquired 2 properties of the deceased but were purchased out of funds of joint Hindu family business and thus being ancestral properties, every one has share in it so the deceased had no right to exclusively transfer it to petitioner through the Will. Respondent further challenged the Will on various grounds being considered below.
Petitioner in his replication denied the allegations of the respondent while affirming the averments made in the petition. On the basis of the pleadings of the parties, my ld. Predecessor framed the following issues vide order dated 29-8-2000:
1. Whether the Will dated 29-8-1991 propounded by the petitioner is the last Will of testator and deceased Brij Bihari Lal and it had been executed by him in sound disposing mind with his own free will and that it is a valid Will? OPP
2. Relief.
In order to prove his case, petitioner examined three witnesses, namely Sh. Sumer Chand Jain, deed writer as PW-1, Sh. Vinod Jain, attesting witness as PW-2 and himself as PW-3. Respondent no. 5 Smt. Kusum Lata stepped into the witness box as R5W-1 and also examined R5W-2 Sh. Sudeshi Ram from the office of MCD to prove some record. I have heard counsel for the parties and also gone through the written submission placed on record by the respondent. My decision on above issues is as under;
Issue no. 1:-
Respondent has taken a plea that immovable properties in question were an ancestral properties being purchased from joint Hindu family funds so deceased had no exclusive right, title or interest over it and thus he was not competent to execute the Will in respect of that properties which actually did not belong to him. PW-3 admitted status of 3 one property as an ancestral property in his cross-examination. Respondent also claimed share in the alleged ancestral properties but this issue of right, title, share and ownership is not to be decided in the probate proceedings. Law in this regard is very clear as per the judgment of Supreme Court given in case Chiranjilal Shrilal Goanka vs. Jasjit Singh (1993) 2 SCC 507. If respondent claim that properties in question are ancestral properties and she has equal right and share in it, then she can file separate civil proceedings in this regard to establish her rights but in the present proceedings, it is not to be seen by this court whether properties were self acquired property of the deceased or were bought from the joint funds. According to this judgment of Supreme Court, even question whether property exists or not is also not to be considered by the probate court and its only concern is to see whether the Will in question is genuine or not. Accordingly, this dispute of title is not to be looked into in the present proceedings. The evidence of R5W-2 led by respondent to show ancestral nature of property and its mutation in the name of all brothers is in respect of title and is not to be considered at all. Mere admission of respondent regarding non taking of any step for getting the property mutated in her name is also not a ground to presume that she had no right in this ancestral property. The another question raised by respondent while citing case law Jaspal Singh vs. Additional District Judge Bulandhahr AIR 1984 Supreme Court 1880 and Kartic Dass vs. Kamal Ghosh 2004 (2) RCR 123 that tenancy rights in respect of one property can not be bequeathed in favour of any particular legal heir in violation of provisions of Delhi Rent Control Act by which all legal heir equally acquire such rights after death of tenant is also not to be considered in the present proceedings being beyond the scope of jurisdiction of the probate court as it is limited to find out whether Will is genuine and duly executed or not. Similarly that portion of the evidence of respondent R5W-1 which relates to deal with the ancestral nature of the property or title has to be excluded.
Will in question is Ex. PW1/1 which consists of two pages 4 typed in Hindi and bearing the photograph of testator Sh. Brij Bihari Lal. It was executed on 29-5-1991 and is bearing signatures and thumb impressions of testator as well as signatures of two attesting witnesses. However this Will was got registered on 5-9-1991. Endorsement and signatures of deed writer is also on it. Signatures of testator on the Will is in Mundi language and respondent in her cross examination admitted that her father used to sign in this Mundi language.
PW-1 Sh. Sumer Chand deed writer in his statement specifically stated that the Will Ex. PW1/1 was drafted and got typed by him as per the instructions and informations supplied by testator and it was executed in his presence by testator after understanding its contents as he had read over it. He also identified photograph of testator affixed on the Will. He also signed on this Will. This witness was maintaining record and produced his register Ex. PW1/2 to show that details and particulars of this Will were entered in it. He also stated that Will was signed and thumb marked by testator in his presence and then it was signed by witnesses.
His evidence is convincing and reliable. His statement cannot be rejected merely on the ground that he was not having any legal qualifications and could not produce his license of deed writer when there is no dispute that he was working as deed writer since 1937. PW-1 had got the Will typed from some typist. Simple fact that typist had not typed registration number and full name of this deed writer (his caste 'Jain' is only typed) and full name and registration number was filled up lateron in hand itself is not sufficient to presume that Will was not drafted or got typed by this witness. These facts on the other hand maximum can point out that at the time of actual typing, PW-1 was not present along with the typist, but that fact would not be sufficient to disbelieve his status of being drafter of the Will especially when this fact is also mentioned in his own register which is not described as forged or manipulated. The fact that PW-1 was working in his professional capacity and did not know testator very well before taking up assignment 5 of drafting of the Will is also not a ground to discard his testimony. It was also not a duty of deed writer to personally see the properties of the testator and his title documents before drafting of the Will. Non remembering of certain minor facts by PW-1 also can be ignored keeping in view his very old age at the time of giving statement in court and that also after about 10 years from the date of execution of the Will which would not effect his reliability in any manner.
Scribe of the Will is not to be treated as an attesting witness of the Will as held in Janki Narain Bhoir vs. Narain Naam Dev Kadam 2003 (2) SCC 91 however the facts of the case law can be distinguished from the facts and circumstances of the present case where scribe/deed writer has also saw the execution process. The Will was executed in presence of this deed writer PW-1 at his residence and his status is also of one of the attesting witnesses. This witness has fully proved how and in which manner its execution had taken place. He has read over the contents of the Will to the testator before his signing. Signing and putting of thumb impressions of testator and other witnesses had taken place in his presence. Mere fact that this witness has not specifically pointed out or identified at which point, signatures of testator and witnesses on the Will exists is not sufficient to discard his statement. Will is also signed by PW-1 and in my opinion, his status cannot be restricted only to the deed writer but also can be termed as an attesting witness.
PW-1 was not present at the time of registration of the Will and did not know whether it was ever registered or not. Mere fact that PW-2 is saying contrary that PW-1 was present in the office of Sub- Registrar at the time of registration of the Will is not sufficient to discard his version regarding drafting of the Will as per instructions, its reading over to testator, its execution in his presence as well as fact that testator had signed on it after understanding its contents. Accordingly, it is held that PW-1 has also proved the due execution of the Will. At one occasion while deposing in court, simple fact that his register was held by petitioner in his hand due to old age of PW-1 is not sufficient to presume 6 that he had conspired with him to depose falsely.
PW-2 is one of the attesting witnesses. He identified his own signatures on the Will but nowhere said anything about identification of signatures of others. He also proved the manner of execution of the Will. This witness also stated in his examination in chief that deceased had signed on the Will after understanding its contents and finding the same as correct and also put his thumb impression on it. Another witness also put his signatures in presence of PW-2 on the Will. However in cross examination, this witness has diverted from certain facts by saying that he had signed firstly on the Will and left but 3/4 other persons had also signed on the same in his presence. He appears to have become confused in cross examination and mixed up two separate instances of execution and registration taken place on different dates. His deposition also point out that registration of the Will was not proper and regarding his signing before Sub-Registrar is contradictory in examination in chief and cross examination. His version that Will was written in his presence also cannot be accepted because it was not written but was typed Will. After considering his whole testimony and despite some contradictions, I am of the opinion that due to passage of time and gap in between examination in chief as well as cross examination, these contradictions can be ignored. Even if for the sake of arguments, it is presumed that testimony of PW-2 is unreliable and not trustworthy but still the due execution of the Will is proved by PW-1.
Law does not require that specifically pointing out signatures of testator and witnesses at particular point on the Will is necessary to prove the due execution of the same. It is also not a requirement that attesting witness must see the Will before deposing about the manner of execution. Specifically identifying the signatures of each one is not the requirement of either of provision of section 63 of Indian Succession Act or section 68 of Indian Evidence Act. Delhi High Court in Paramjit Singh vs. State CM no. 2304/07 decided on 2-5-2007 held that the courts while exercising testamentary and intestate jurisdiction are to act in 7 consonance with the ultimate objective of succession. The statutory provisions and the rules are to be interpreted in a manner which would give effect to and further the intention of the deceased rather than to act in a manner which would have a converse effect on what was contemplated by the deceased. The Will should not be rejected on the ground of technicalities. The effort of the court should be that the genuine last Will of the deceased must prevail. In view of these observation of Hon'ble High Court, I am of the view that technical defects in execution and registration can be ignored.
Respondent is challenging the mental status of the deceased and according to her as per suggestions given to the witnesses, he was suffering from some psychiatric/brain problems and was taking treatments from G.B. Pant and Sunder Lal Jain hospitals. However, she neither examined any doctor nor produced any medical record to prove that deceased was not having sound mind at the time of execution of the Will. Respondent even admitted that she was not in possession of any medical record of her deceased father. On the other hand, PW-1 and 2 specifically stated that testator was in sound disposing mind at the time of execution of the Will and there is no ground to reject their testimony in this regard in absence of any evidence to the contrary. PW-3 in his statement admitted that in the year 1968, testator was suffering from some mental disturbance but this admission is not relevant because will was executed in year 1991 after 23 years of alleged mental disturbance and relevant date when status of mind is to be seen is the date of execution of the Will or just nearby period. Respondent has failed to show that as on the date of execution of the Will, testator was of unsound mind and incompetent to execute any Will. The photographs of her marriage were not brought on record by respondent despite specific demand, which could show that testator was not of unsound mind and was actively participating in marriage ceremonies so its adverse inference can be raised against her. Accordingly, it is held that testator had executed the Will in his sound disposing mind after understanding the 8 right and wrong.
PW-2 stated that he was called by the petitioner for the purposes of signing on the Will. Even if for the sake of arguments, it is presumed that petitioner had accompanied with the deceased at the time of execution of the Will to the residence of PW-1, then that fact itself is not a sufficient ground to presume that he had exercised pressure or undue influence in getting the Will executed or procured, when no such defence is raised by the respondent in her objection. On the other hand, statement given by PW-2 that he was also told by the deceased about his intention to execute the Will one day before the date of execution and requested him to come at the time of execution is not challenged. The telling of these facts by the testator himself to PW-2 also point out voluntarily execution of the Will on the part of the deceased. Case law cited Ajit Singh vs. Nand Singh 1983 RLR (Note) 12 is distinguishable from the present circumstances of the case.
On behalf of respondent case laws Devku vs. Smt. Sunari AIR 2008 HP 15 and Niarnjan Umesh vs. Mrudula Jyoti AIR 2007 Supreme Court 614 have been cited and it is argued that excluding of legal heirs without any reason makes the Will suspicious but in the present case in the Will itself, reasons have been given why no share in the properties had been given to others children and why everything is given to the petitioner alone. Non raising of any objections by the mother and other brothers and sisters of the petitioner further leads to the impression that they had accepted the genuineness and validity of the Will and objections raised by only respondent are without any substance. She had no knowledge whether her other brothers have sold their share to the present petitioner. On the other hand admissions made by respondent in her cross examination that she visited the house of deceased only on death occasions in the gap of several years further point out that she was not having good visiting terms and relations with her parents and thus her looking after and taking care of deceased is totally ruled out. In Indian society, generally daughters are excluded 9 from the benefit of estate so in that situation, excluding the present respondent also from the benefit of the estate of the deceased through Will can be said as justified and on this account, Will cannot be termed as unnatural or suspicious. Delhi High Court in Mathew Jacob vs. Salestine Jacob AIR 1998 Delhi 390 held that mere deprivation of certain class-I heirs is no ground to doubt the Will.
Respondent is describing the Will as forged and fabricated but she has not examined any handwriting expert to prove that signatures and thumb impressions of testator on the Will were forged. She has admitted the photograph of her father affixed on the Will. She denied photograph of her father on the license issued by Food and Civil Supplies department but that photograph matches with the photograph on the Will. Deceased was maintaining the bank account, had obtained license from govt. agency to do business of edible oil, running business and sometimes writing account books as admitted by the respondent in her statement so signatures and thumb impressions of testator could have been easily available but non taking of any steps to get those compared with the signatures and thumb impressions on Will demolish the alleged theory of forgery of the Will. Respondent admittedly was not knowing Mundi language, then how she could say that she can identify signatures of her father and Will does not bear his signatures in Mundi is not explainable.
Registration of the Will is not mandatory but if it registered, then some presumption of its due registration (not of execution) can be raised. If Will is unregistered or improperly registered, then still it can be held valid, enforceable and reliable, if its due execution as per provision of section 63 of Indian Succession Act is established. From the statement of PW-2, it appears that Sub-Registrar had not registered the Will as per proper procedure and this witness though is shown as attesting witness had not appeared before him. From the statement of PW-2, maximum it can be said that registration of Will on subsequent date was not proper and presumption of due registration is not attachable to it but when its 10 due execution is proved from statement of PW-1 and 2, then mere improper registration would not make it invalid.
Non cross examination of R5W-1 on certain minor and unimportant facts alleged in her affidavit or cross examination not directly relevant to the controversy will not affect the case of the petitioner in any manner. The forgery of signatures on the Will was to be proved by the respondent and mere simple allegations that cheques of testator used to be sign by daughter of the petitioner which is not rebutted in cross examination cannot be taken as sufficient to presume the forgery of the Will. Otherwise also, only signatures of testator on the Will are said to be forged and there is nothing in the objections or evidence of respondent that the thumb impressions on the Will were also not genuine.
In my view the original Will Ex. PW1/1 is proved by the witnesses on record as per provisions of Indian Evidence Act and it was correctly exhibited by the court. After considering the evidence on record, I am of the view that Will Ex. PW1/1 is not surrounded by any suspicious circumstances which have not been explained by the petitioner. The Will is genuine and last testament of the deceased executed in his sound disposing mind so it can be given effect to. This issue is thus decided in favour of the petitioner and against the respondent.
Issue no. 2 (Relief):-
As Will in question is found genuine and duly executed so the petition is hereby allowed. Letter of Administration on basis of Will of deceased Ex. PW1/1 is granted in favour of the petitioner in respect of properties mentioned in Annexure-B subject to deposit of court fee, administration bond with one surety bond. The valuation of the immovable and movable properties in questions as mentioned in Annexure-B as on the date of filing of the petition shall be ascertained at the time of completion of necessary formalities to calculate the amount of 11 court fee. After receipt of formal Letter of Administration from the court, petitioner shall be under obligation to comply with the terms and conditions of section 317 of Indian Succession Act also. It is hereby clarified that question of right, title and interest of the deceased or present petitioner is not decided in the present proceedings. File be consigned to record room.
(Ashwani Sarpal)
Dt. 9-2-2009 Additional District Judge